Powerful Post US Visit Statement from: UN Working Group of Experts on People of African Descent

Statement
to the media by the United Nations’ Working Group of Experts on People
of African Descent, on the conclusion of its official
visit to USA, 19-29 January 2016

WASHINGTON D.C. (29 January 2016) – The Working
Group of Experts on People of African Descent thanks the Government of
United States of America for its invitation to visit the country, from
19-29 January 2016, and for its cooperation. This
visit is a follow up to the 2010 visit of the WGEPAD and includes other
cities. We thank in particular the Department of State for arranging
the visit and the local authorities who met with the Working Group
during our visit to Washington D.C., Baltimore,
Jackson-Mississippi, Chicago and New York City. We would like to give
special thanks to the hundreds of civil society representative
organizations, lawyers and individuals from the African American
community for sharing their concerns and recommendations with
our delegation. We also thank numerous human rights defenders and
activists who reached out to us from other parts of the country that we
could not visit.

The Working Group regrets that it did not receive
access according to the terms of reference for special procedure mandate
holders to visit Mississippi State Penitentiary Parchman. It also
regrets that it was not possible to meet with all
of the high level state and local level authorities requested.

The views expressed in this statement are of a
preliminary nature, our findings and recommendations will be presented
in our mission report to the United Nations Human Rights Council in
September 2016.

During the visit, the Working Group assessed the
situation of African Americans and people of African descent and
gathered information on the forms of racism, racial discrimination,
xenophobia, Afrophobia and related intolerance that they
face. We studied the official measures and mechanisms taken to prevent
structural racial discrimination and protect victims of racism and hate
crimes as well as responses to multiple forms of discrimination. The
visit focused on both good practices and challenges
faced in realising their human rights.

We welcome the work of the Civil Rights centers, in
all Government departments, and the Equal Employment Opportunities
Commission that implement the Civil Rights legislation through
investigation of complaints, litigation, issuance of guidance
and remedies including compensation.

We also acknowledge the work of the Department of
Justice Civil Rights Division regarding access to justice,
investigations of excessive use of force by the police and patterns of
discrimination.

We welcome the recent steps taken by the Government
to reform the criminal justice system and combat racial discrimination
and disparities through the following initiatives:

– The Fair Sentencing Act.

– The Justice Department’s “Smart on Crime” initiative.

– The report and recommendations of the Task Force on 21st
Century Policing to strengthen community-police relationships across the
country.

– The new Guidance for Federal Law Enforcement Agencies
Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion,
Sexual Orientation, Or Gender Identity

– The Guidance for consideration of arrests and conviction
records in employment decisions under title VII of the Civil Rights Act
1964

– During our visit, the Government adopted an executive
order to reduce the use of solitary confinement at the federal level by
prohibiting solitary confinement of juveniles, diverting inmates with
serious mental illness
to alternative forms of housing and establishing that inmates should be
housed in the least restrictive setting, among other issues. These
changes are part of a larger effort to pass criminal justice reforms now
pending in congress.

– White House Initiatives such as My Brother’s Keeper and
on Educational Excellence for African Americans, aimed at addressing
opportunity gaps and improving educational outcomes for African
Americans.

– The new report from the Charles Colson Task Force on
Federal Corrections that punitive mandatory sentences for drug crimes
represents the primary driver for prison overcrowding.

We welcome the abolition of the death penalty in
three additional states since the Working Group visit to the US in 2010
as this form of inhumane punishment is disproportionately used against
African Americans.

One of the most important developments in the area
of health has been the adoption of the Patient Protection and Affordable
Health Care Act which has allowed 2.3 million African American adults
to gain medical health insurance.

The Working Group was also informed about some positive steps at the state level:

In New York, we welcome measures that prohibit
employers from asking about criminal history until an employee is hired,
and that make possible the issuance of municipal identification cards
for undocumented immigrants, and that create a
policy of desk appearance tickets for certain offenders as an
alternative to imprisonment for a misdemeanour offence. We also note the
decision to end the policy of stop and frisk.

In Chicago, we welcome the steps taken to combat
the home foreclosure crisis that had especially impacted African
Americans. We also welcome the measures taken by the mayor to foster
accountability in the police department following the
Laquan McDonald’s case.

The US has a growing human rights movement which
has successful advocated for social change. Following the epidemic of
racial violence by the police, civil society networks calling for
justice together with other activists are strongly
advocating for legal and policy reforms and community control over
policing and other areas which directly affect African Americans.

Despite the positive measures referred to above,
the Working Group is extremely concerned about the human rights
situation of African Americans.

The colonial history, the legacy of enslavement,
racial subordination and segregation, racial terrorism, and racial
inequality in the US remains a serious challenge as there has been no
real commitment to reparations and to truth and reconciliation
for people of African descent. Despite substantial changes since the
end of the enforcement of Jim Crow and the fight for civil rights,
ideology ensuring the domination of one group over another, continues to
negatively impact the civil, political, economic,
social and cultural rights of African Americans today. The dangerous
ideology of white supremacy inhibits social cohesion amongst the US
population. Lynching was a form of racial terrorism that has contributed
to a legacy of racial inequality that the US must
address. Thousands of people of African descent were killed in violent
public acts of racial control and domination and the perpetrators were
never held accountable.

Contemporary police killings and the trauma it
creates are reminiscent of the racial terror lynching of the past.
Impunity for state violence has resulted in the current human rights
crisis and must be addressed as a matter of urgency.

Racial bias and disparities in the criminal justice
system, mass incarceration, and the tough on crime policies has
disproportionately impacted African Americans. Mandatory minimum
sentencing, disproportionate punishment of African Americans
including the death penalty are of grave concern.

During this country visit, the experts observed the
excessive control and supervision targeting all levels of their life.
This control since September 2001, has been reinforced by the
introduction of the Patriot Act. We heard testimonies
from African Americans based on their experience that people of African
descent are treated by the State as a dangerous criminal group and face
a presumption of guilt rather than innocence.

The state is also not acting with due diligence to
protect the rights of African American communities, as evidenced by the
lack of gun control and stand your ground laws, among others. Hate crime
groups, including white supremacist terror
groups are still active in the US targeting the Black community as was
seen in the attack at the church in Charleston in 2015. The Confederate
flag is considered as a symbol of hate for many African Americans and
they have led campaigns to have it removed
however it still is used by some local authorities.

The persistent gap in almost all the human
development indicators, such as life expectancy, income and wealth,
level of education and even food security, among African Americans and
the rest of the US population, reflects the level of structural
discrimination that creates de facto barriers for people of African
descent to fully exercise their human rights.

Disparities in the enforcement of policies, can be
found in the different approaches adopted by states to address issues
such as racial profiling, the presence of police in schools, the
criminalization of homelessness, the limitations on
the use of lethal force by law enforcement officials, the use of
solitary confinement and the trial of juvenile offenders, among others.

The Working Group is concerned about the alarming
levels of police brutality and excessive use of lethal force by law
enforcement officials committed with impunity. In addition to the most
recent and well-known cases of killings of unarmed
African Americans, such as the cases of Eric Garner, Michael Brown,
Tamir Rice, Walter Scott, Freddie Gray and Laquan McDonald, the Working
Group also received information about many other similar cases. The
Working Group met with a considerable number of
relatives of African Americans killed by police officers that are still
seeking justice for their loved ones including Tyron West, Tyron Lewis,
Jonathon Sanders, Oscar Grant, Tony Robinson, Marlon Brown, India
Kager, Ronald Johnson, Mohamed Bah and Alonso
Smith.

Despite some efforts made by the Department of
Justice, there is still a lack of an official national system to track
killings committed by law enforcement officials. Unofficial sources,
such as The Washington Post and The Guardian, identified
between 38 and 75 cases of unarmed African Americans killed by the
police in 2015.

However, the Working Group is deeply concerned
about the low number of cases where police officers have been held
accountable. The Working Group identified that the lack of initial
investigations conducted by independent and external bodies
from police departments, the wide discretion of attorney generals to
determine when and how to present charges and the state and county
regulation that are not in line with international standards on the use
of the force and firearms are some of the main barriers
to police accountability.

Racial profiling is a rampant practice and
seriously damages the trust which African Americans have in relation to
law enforcement officials.

Some media portray African Americans as criminals
and this negatively impacts on the perception which the American society
in general has in relation to African Americans.

With 2.3 million people incarcerated and 4.8
million on parole or probation, mass incarceration has had a
disproportionately impact on People of African descent. The Bureau of
Justice Statistics (2014) shows that 36% of the sentenced state
and federal prisoners are African Americans. One in three African
American men will go to prison or jail if current trends continue.
African American women are also increasingly being targeted by the
criminal justice system.

The costs of mass incarceration practices must be
measured in human lives, and particularly the generations of young Black
who serve long prison sentences and are lost to their families and
communities. We also heard how mass incarceration
of Black men and women has had devastating effect on their children.

We express deep concern on the continued existence
of death penalty in 31 states and at the federal level. African
Americans represent 41.7 percent of death row population and out of 28
inmates executed in 2015, 10 were African Americans.

State laws that established mandatory minimum
sentences and zero tolerance policies have been applied with racial
bias. Thousands of young African Americans have been placed in detention
centres without addressing the root causes of crime,
or guaranteeing better security to their communities; nor have they
been offered effective rehabilitation.

The Working Group is concerned about inadequate
conditions of detention and in accessing quality health care, including
for mental health. Reportedly, inmates were either misdiagnosed or
over-medicated. African American communities highlighted
that the privatization of prisons might tend to privilege the earning
of profits, by sacrificing adequate detention conditions.

We are also concerned about the criminalization of
poverty which disproportionately affects African Americans. There has
been an increase in imprisonment of people for minor offences and those
who are unable to pay debts due to an increase
in fines and fees. They are detained in debtor prisons and made to work
off their debt. As the Justice Department has shown in the
investigation of the Ferguson Police Department, in other counties the
imposition of fines is a way to secure revenues than a
public security issue. This creates numerous problems for the
individual and family.

There is also an excessive punishment of poor children for minor offences.

The devastating impact of the “war on drugs” has
led to mass incarceration and is compared to enslavement, due to
exploitation and dehumanization of African Americans.

While noting the recent Executive order on solitary
confinement, we remain concerned about its use in prisons, juvenile
detention centres and foster care, at both federal and state levels. We
are particularly concerned about its negative
impact on children.

People that served their time in prison continue to
be stigmatized when they are released. Their criminal records impedes
them from finding a job, getting adequate housing or accessing social
programmes, and voting. Some re-entry programmes
are not well-funded and are not present countrywide.

We are concerned about the underage prosecution of
children as adults in the USA. Children are detained in adult jails and
prisons putting them at risk of sexual assault and abuse. These
practices are a violation of children’s human rights
and should be eliminated. Juveniles should be treated as juveniles no
matter what crime they are alleged to have committed and must be held in
a juvenile facility.

The Working Group was also concerned that voter ID
laws with increased identification requirements in several states served
to discriminate minorities such as African Americans contrary to the
spirit of the 1965 Voting Rights Act.

The cumulative impact of racially-motivated
discrimination faced by African Americans in the enjoyment of their
right to education, health, housing and employment, among other
economic, social, cultural and environmental rights, has had
serious consequences for their overall well-being. Racial
discrimination continues to be systemic and rooted in an economic model
that denies development to the poorest African American communities.
More than ten million (26%) of African Americans remain mired
in poverty and almost half of them (12%) live in what is known as “deep
poverty”. The Working Group is particularly concerned about the fact
that 48% of the households headed by African American women live under
the poverty line.

The Working Group noted that a number of factors
contributed to the disparities faced by African Americans in the
realization of the right to health, including access to health insurance
coverage, lack of access to preventive services and
care, and lack of diversity and cultural competency of the care. While
the implementation of the Affordable Care Act has led to a 17.6 million
people getting health insurance coverage, states with some of the widest
health disparities in the country have rejected
Medicaid expansion, one of the main tools to cover the uninsured. Nine
out of ten people who fall into the coverage gap live in the South and
Black adults are more likely than any other racial group to be affected.
The impact of social determinants such as
access to quality and healthy housing conditions, lack of education and
employment, transportation barriers also continued to serve as barriers
to the full enjoyment of right to health.

The Working Group learnt that African Americans
have limited access to food variety including healthy food as they are
concentrated in poor neighbourhoods with food outlets selling unhealthy
and even expired food. African Americans have
the highest rates of obesity which is linked to “food deserts”. Racial
discrimination impedes the ability of Black women to maintain overall
good health, control their sexuality and reproduction, survive pregnancy
and child birth, and parent their children.
Black women in the USA die from pregnancy-related complications at a
rate three to four times higher than White women.

We were informed that across the country there are
police in the schools arresting children for minor offences. The police
have authority to detain, frisk and arrest children in school. Zero
tolerance policies and heavy-handed efforts to
increase security in schools have led to excessive penalization and
harassment of African American children through racial profiling.
African American children are more likely to face harsh disciplinary
measures than White children. This phenomenon has been
sadly described as “the school to prison pipeline”.

The Working Group was concerned by the
under-funding and closure of schools that are particularly in poor
neighbourhoods with significant African American population. We were
concerned to learn that there are threats to close the Chicago
State University, a historically Black university.

In school curricula, the historical facts
concerning the period of colonization and enslavement are not
sufficiently covered in all schools. This history, crucial in the
organization of the current American society is taught differently
by states, and fails to adequately address the root causes of racial
inequality and injustice. Consequently, this contributes to the
structural invisibility of African-Americans.

We have received information about de facto
segregation schools. Segregation appears to be nurtured by, a culture of
insufficient acknowledgement of the history of enslavement and the Jim
Crow Law. There is also a lack of attention to the
matter of reparatory justice for enslavement and its effects.

We are concerned about the persistence of a de
facto residential segregation in many of the metropolitan areas in the
US. A series of maps, generated by the Department of Housing and Urban
Development, shows not only stark levels of concentration
of African-American families in low income neighbourhoods and
districts, but also the correlation between racial segregation and
disparities in access to health, education and even access to adequate
food among them and the White population.

The zip code can determine to some extent the
future development of young African Americans. People from Black poor
neighbourhoods are more likely to face lower education achievements,
more exposure to violence and crime, a tense interaction
with the police, less employment opportunities, environmental
degradation and low life expectancy rates as well.

In many cities African Americans are facing a
housing crisis, in which people are not able to pay their rents or
mortgages, and even less to purchase a new house. In addition, the
Working Group was informed about the destruction of public
housing on some cities; at the same time, public funding for new houses
appears insufficient to meet the demands of new housing.

The Working Group was informed that African
Americans are more likely than White people with similar borrowing
profiles to be victims of predatory lending and to receive higher cost
loans.

In addition, the process of gentrification has a
heavy impact on African Americans who are being displaced from city
centers under the argument of the need for new investment and
development. In particular, the Working Group was alarmed
by incidents of eviction, demolition and conversion of Barry Farm
public housing in Washington D.C.

According to the U.S. Department of Housing and
Urban Development in 2015, Of over half a million homeless people in the
US, African Americans constituted 40.4 percent. They also constituted
30.4% of the homeless people that were unsheltered.

Despite the recovery of the US economy, the impact
of the 2008-2009 economic recession had on African Americans is still
very present. The unemployment rate among African Americans is twice the
national unemployment rate. The Working Group
is especially concerned about the level of unemployment among young
African Americans without a high school degree. In 2014 the annual
income for African-Americans was almost half the income of White
Americans who are not Hispanic.

People of African descent continue to be
underrepresented in higher level working positions. In 2013 they only
represented the 7% of the senior level employers. Instead, their
participation on temporary jobs with lesser security and lower
salaries has been on the increase in recent years. Nearly half a
million African Americans earn the minimum wage.. The Equal Employment
Opportunity Commission (EEOC) continued to receive more than 30,000
complaints a year concerning racial discrimination.

The highest polluting industrial facilities, across
a range of sectors from farming, mining to manufacturing, are more
likely to be situated in poor and minority neighbourhood, including
those of people of African descent. For instance,
we are concerned about the possible health risks to people of African
descent on account of the incinerator project in Curtis Bay, Baltimore
and the lead contaminated water in Flint, Michigan. African American
communities are calling for environmental justice
as they are concerned that they are disproportionately exposed to
environmental hazards impacting their health and standard of living.

We also studied intersectionality of the different
forms of discrimination and heard experiences of discrimination based on
skin colour, ethnicity, religion, socioeconomic status, sex and gender
identity. In particular we are concerned
by the increasing level of violence and murders of transgendered women.

The complexity of the organisation of the legal
system with independence of federal, state, county and tribal
jurisdiction and lack of direct applicability of international human
rights law and federal law and policy creates gaps that impacts
deeply on the human rights of African Americans.

The Working Group acknowledges that Civil Rights
federal legislation, put in place in the 1960’s and the 1970’s, has had a
positive impact redressing individual and even institutional cases of
racial discrimination. However, hearing the
testimonies of African American communities in different parts of the
country, the Working Group is concerned about civil rights laws
implementation not being sufficiently effective to overcome and
transform the structural racial discrimination against African
Americans.

The Working Group is concerned that African
Americans do not have the possibility to bring their cases or individual
complaints to regional and international bodies when they have
exhausted all domestic remedies at the state and federal
level as they are not party to the protocols which would allow them to
bring complaints. Furthermore International human rights treaties cannot
be invoked in national courts as there is no enabling legislation and
they have been declared non-self-executing.

The following recommendations are intended to
assist the United States of America in its efforts to combat all forms
of racism, racial discrimination, Afrophobia, xenophobia and related
intolerance:

The Working Group reiterates the following recommendation made after its visit to the United States in 2010:

– Establish a national human rights
commission, in accordance with the Paris Principles. The Government
should establish within this body a specific division to monitor the
human rights of African Americans.

– In addition to the above, the Working Group
urges the Government of the United States to consider the ratification
of the core international human rights treaties to which the United
States is still not a party,
with a view to remove any gaps in the protection and full enjoyment of
rights therein. It also encourages the USA to ratify regional human
rights treaties as well as review reservations related to the treaties
it has signed or ratified.

– Federal and state laws should be adopted
incorporating the International Covenant on Civil and Political Rights
and other international human rights treaties.

– There is a profound need to acknowledge
that the transatlantic slave trade was a crime against humanity and
among the major sources and manifestations of racism, racial
discrimination, xenophobia and related
intolerance and that Africans and people of African descent were
victims of these acts and continue to be victims of their consequences.
Past injustices and crimes against African Americans need to be
addressed with reparatory justice.

– Monuments, memorials and markers should be
erected to facilitate this important public dialogue. Education must be
accompanied by acts of reconciliation, which are needed to overcome acts
of racial bigotry and
legacies of injustice. To accelerate the process of desegregation,
federal and state legislation should be passed recognizing the
experience of enslavement.

– During the International Decade for People
of African Descent public forums or hearings should be held with African
American communities to enter into a constructive and open dialogue in
which organizations,
social movements have access to share experiences and to engage with
the policy makers and institutions and local state and federal
government on ways to address the current crisis.

– We encourage congress to pass the H.R. 40
-Commission to Study Reparation Proposals for African Americans Act –
Establishes the Commission to examine slavery and discrimination in the
colonies and the United
States from 1619 to the present and recommend appropriate remedies.

– We encourage the US government to elaborate
a National Action Plan for Racial Justice to fully implement the
International Convention on the Elimination of all forms of Racial
Discrimination (ICERD) and comprehensively
address racism affecting African Americans.

– The Government should increase engagement
with human rights organizations and civil society at large with an aim
to implement the Universal Periodic Review recommendations made to and
accepted by the USA.

– We urge the Government to ensure that
recent policies undertaken to address racial disparities will be further
implemented at the federal and state levels.

– The Working Group urges Congress to
expedite the passing of all pending criminal justice reform bills
including the End Racial Profiling Act, the Second Chance
Reauthorization Act and welcomes the bi-partisan
support for the Sentencing Reform and Corrections Act, which among
other things proposes to drastically reduce the use of mandatory minimum
sentencing.

– In imposing the sentence, the welfare of
the family of the accused should be taken into account, with particular
attention to the best interests of the child.

– Appropriate measures should be adopted to prevent excessive bail. Alternatives to detention should also be explored.

– Community policing strategies should be
developed to give the community control of the police which are there to
protect and serve them. It is suggested to have a board that would
elect police officers they
want playing this important role in their communities.

– Before non-payment of a court fine or fee
is treated as civil contempt of court charge it must first be determined
whether the individual has the ability to pay. Imprisonment should not
be offered as a way of
paying off the debt. If the debt cannot be paid the fee should not be
levied.

– We also recommend that part of the prison
reforms processes and policies include specific policies to address
increasing rate of incarceration of African- American women.

– Solitary confinement should be banned
absolutely for being in violation of international human rights law
standards particularly those found in the United Nations Convention
against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, and the United Nations
Standard Minimum Rules on the Treatment of Prisoners.

– The Working Group recommends to the
Government to allow independent monitoring of places of detention in the
United States and in this connection consider inviting Special
Rapporteur on Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, and the Working Group on
Arbitrary Detention.

– International human rights standards should
be observed in the criminal justice system. We recommend the abolition
of the death penalty throughout the United States.

– The Working Group calls upon the Government
to ensure that all states repeal laws that restrict the voting rights.
In particular it urges reinstatement of voting rights of persons
convicted of felony who have
completed their sentences.

– Targeted measures should be developed with
the community to raise awareness and reduce crimes against LGBTQI
community, in particular against transgendered women.

– The Working Group recommends improving
reporting of violations involving the excessive use of force and
extra-judicial killings by the police, and ensure that reported cases of
excessive use of force are independently
investigated; that alleged perpetrators are prosecuted and, if
convicted, punished with appropriate sanctions; that investigations are
re-opened when new evidence becomes available; and that victims or their
families are provided with remedy.

– The Working Group recommends to the
Government to step up its efforts to prevent excessive use of force by
law enforcement officials by ensuring compliance with the 1990 Basic
Principles on the Use of Force
and Firearms by Law Enforcement Officials.

– Security policies in schools should be revisited. Policing in schools should be abolished.

– Misdemeanour laws should be repealed, such
as the misdemeanour law in South Carolina where school disturbance
constitutes a misdemeanour.

– The use of restraint and seclusion in
schools should be prohibited. Early counselling should be given to
students with mental health issues. Special attention and protection
must be given to students with autism,
ADHD and other similar disabilities.

– We recommend the Government develop
guidelines on how to ensure school discipline policies and practices are
in compliance with international human rights standards. Positive
Behavior Intervention and Support
(PBIS) and restorative practices in school discipline should be used
for reducing disciplinary incidents and improving learning in schools.

– Males should be separated from females in
detention. Younger prisoners should be separated from adults.
Alternatives to imprisonment for youth such as intervention and
diversion should be explored.

– The Working Group recommends that health
policies and programmes should place particular priority on access to
quality and affordable health care with targeted goals to reduce
maternal mortality of African American
women.

– Consistently, the school curriculum in each state should reflect appropriately the history of the slave trade.

– The Department of Education should study
zero tolerance policies and its disparate impact on African American
students. A Taskforce should be created to specifically focus on
realigning and reengaging students
who have been dismissed from educational institutions as part of a zero
tolerance policy.

– The Working Group recommends upholding the
right to adequate standards of living including the right to food, right
to water and the right to adequate housing. The Government should
immediately halt the demolition
of public housing without guaranteeing replacement units. All such
activities must be undertaken only through prior and informed consent
and participation of the communities affected.

– The Working Group urges the government to strengthen the
implementation of Executive Order 12898 including through the allocation
of adequate resources.

– The US government should undertake a review of policies to improve protection and ensure environmental justice is provided.

– The Working Group encourages
the government to undertake impact-oriented activities in the framework
of the International Decade for People of African Descent (2015-2024).The Working Group welcomes the
cooperation and engagement with the international human rights system to
combat racial discrimination. We hope that our report will support the
Government in this process
and we express our willingness to assist in this important endeavour.